P v Police HC Wellington CRI 2010-485-104

[2010] NZHC 2176

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-104

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 December 2010

Counsel:         W M Johnson for Appellant

S Barr for Respondent

Judgment:      8 December 2010

JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

Introduction

[1]      On 16 April 2009 Ms P   was driving her car in Ferguson Drive.  She was stopped by a police officer and breath tested.  The result of the breath test showed that she was driving with 444 micrograms of alcohol per litre of breath.   In the District  Court  the  appellant  challenged  the  information  on  which  the  charge  of driving with an excess breath alcohol was based.  Counsel submitted it was a nullity and that it could not be cured by s 204 of the Summary Proceedings Act 1957 and

that it had other defects.

P V NEW ZEALAND POLICE HC WN CRI 2010-485-104  8 December 2010

[2]      The Judge identified two issues:

a)        whether  the  s 19B  of  the  Summary  Proceedings  Act  had  been complied with and, if so;

b)whether s 204 “should be applied to save the undoubtedly defective information”.

[3]      The Judge concluded s 19B had been complied with and that s 204 did save the defective information. This appeal challenges those conclusions.

Section 19B

[4]      I turn firstly therefore to the s 19B issue.

[5]      In the District Court the Judge allowed Constable Marshall, who dealt with Ms P   on the evening of 16 April 2009, and Sergeant MacDonald who swore the information in question to give evidence relating to the s 19B issue and the defective information.

[6]      The Judge summarised their evidence in this way:

[4]       Constable Marshall said that after processing Ms P   on 16 April, he served her, just before 11.30 p.m., with a summons under s 19B of the Summary Proceedings Act.  A copy was produced in evidence.  He then said that before the end of his shift he entered the relevant information into the police NIA database which then produces the information.  He then took the relevant copy of that information and attached the s 19B summons to it so that the early shift staff could deliver it to the Sergeant at Upper Hutt.  He left it in his out tray on that basis and did so at about 10 minutes past midnight.   Because he did not know who would swear the information he left those details blank and the date of swearing was similarly left blank.

[5]       Sergeant MacDonald gave evidence that it was part of his duties to swear this and other informations.  He confirmed that the signature above the line under which is the word “Informant” was his.  He acknowledged that it was his mistake that his name was not entered at the start of the document nor the place where he comes from and that there was no date or place of swearing.  He was unable to say who was the Deputy Registrar who took his affidavit because he did not recognise the signature.   However he was adamant that it would have been a Deputy Registrar at the Upper Hutt District Court because his standard practice is to swear informations at the

Upper  Hutt  District  Court  counter  before  either  the  Registrar  or  a

Deputy Registrar.

[6]       Sergeant MacDonald has no specific recollection of this particular information but he was able to say that he is sure it would have been sworn on either Monday 20 April or Tuesday 21 April, despite the absence of any document confirming that.  The reason he said he could say that is that he is sure, based on the evidence of Constable Marshall, on the summons and on his  typical  practice,  that  he  would  have  received  the  document  by Monday 20 April and he would either have sworn it on that afternoon or, at the latest, the following  morning.  He is clearly aware of the seven-day time limit applying in these circumstances.  In summary, while he was not sure whether it was sworn on 20 or 21 April, he was sure it must have been one or the other.

[7]      The Judge identified the s 19B issue in this way:

[9]       There is no dispute between the parties that if the information was not sworn and filed within seven days of 16 April 2009 then it is a nullity and the case must be dismissed.  That is clear from the recent judgment of Justice Lang  in  Wainhouse  (High  Court,  Auckland,  CRI 2009-404-68,

19 October 2009).

[8]      He    said    he    was    satisfied    beyond    reasonable    doubt,    based    on Sergeant MacDonald’s evidence, that the information had been sworn within the seven day time limit.   While he recognised that Sergeant MacDonald could not specify on which of the two days he had sworn the information, even assuming he had done so at the last moment of the last day that was only the fifth day of the seven allowed to swear the information.

[9]      Section 19B provides as follows:

19B      Summons following evidential breath test

(1)If a person undergoes an evidential breath test under section 69 of the Land Transport Act 1998 and the test is positive, but the person who  underwent  the  test  does  not  advise  an  enforcement  officer within  10  minutes  of  being  advised  of  the  matters  specified  in section 77(3)(a) of the Land Transport Act 1998 that the person wishes to undergo a blood test, an enforcement officer may sign and serve on the person a summons in a form prescribed for the purposes of this section.

(2)Every such summons shall require the person to appear on a day not later than 2 months after the date of the summons at the Court where the information required by subsection (3) of this section is to be filed.

(3)An information under this Part of this Act in respect of the offence with which the person is charged shall be laid and filed by an enforcement officer as soon as practicable after the evidential breath test was administered, and in any event not later than 7 days after the day the test was administered.

(4)It is the duty of every enforcement officer who issues a summons under this section to ensure that the information required by subsection (3) of this section is laid and filed.

(5)A copy of a summons served under this section shall be filed with the information, and the copy shall bear an endorsement, signed by the enforcement officer who issued the summons, showing the fact, time, and mode of service.

(6)       In this section, the term enforcement officer has the same meaning as it has in section 2(1) of the Land Transport Act 1998.

[10]     The Judge was clearly correct to take this view.   The only question was whether or not the information had been sworn within the seven day time limit.  At the latest it was sworn on the fifth day after the appellant’s apprehension.  The fact that the Sergeant could not say whether it was the fourth or fifth day does not matter. Both were within the seven day rule.  The Judge’s decision to dismiss this ground of challenge was clearly correct.

Defects in information and s 204

[11]     Mr Johnson  for  the  appellant  identified  the  following  defects  in  the information as filed in Court:

a)        the person purporting to swear the information was not named;

b)        the place and date of swearing of the information are not “filled in”;

c)        the date of birth of the appellant is recorded as 18/8/19 and her gender as “male”;

d)       the Deputy Registrar’s signature is indecipherable.

[12]     Further, the appellant complains that the disclosure copy of the information provided to the defence had “no informant signature”, nor any signature of the person before whom the information was sworn.

[13]     The appellant submits that it cannot be said the information has been sworn. This would mean, the appellant says, the information is a nullity.  Further, it is the appellant’s case that the overwhelming number of defects in the information mean it is a nullity.

[14]     Firstly, I identify the “defects” in the information.   The allegation that the person purporting to swear the information is not named is correct.  The information records that a constable has said on oath that he suspects the appellant committed a crime but his name is not provided.   The informant constable has signed the information, indicating the oath has been taken but the constable’s signature does not clearly identify his name.

[15]     The  place  and  date  of  swearing  of  the  information  are  not  filled  in. Underneath the informant’s signature are the words “sworn before me at ... this ...” but there are not entries after “at” or “this” identifying where the information was sworn or when it was sworn.

[16]     As to the date of birth and the gender of the appellant the date of birth entry records “18/08/19” in typed figures.  It seems probable that the remaining numbers have been lost because that part of the information has torn.  There is a handwritten note below the typed date recording “1944” although there is no evidence as to when that was added to the information.

[17]    As to gender the information notes “female” contrary to the appellant’s assertion.

[18]     As to the defence disclosure point (at [12]), whether or not the disclosure copy of the information provided to the defence did or did not have all of the proper information does not affect the integrity of the information itself.   It is however incumbent upon the police to make sure they provide a copy of the information to

the defendant which matches the copy filed in Court.  This is not however an appeal point.

[19]     The fact that the Deputy Registrar’s signature is “indecipherable” (at [11](d)) does not matter.   It is simply a signature of the person who takes the oath of the informant.

[20]     The Judge concluded that given the evidence of Sergeant MacDonald he was satisfied  the  information  had  been  sworn  and  that  the  defects  occurred  simply because of carelessness.   The Judge considered that the real question was whether the information was so defective as to have resulted in a miscarriage of justice.  The Judge noted that s 204 required that defects in the information are not to result in the proceedings “being halted unless the Court is satisfied there has been a miscarriage”.

[21]     The appellant’s claim that a miscarriage had occurred was based on the claim that Ms P   had not been advised who her accuser was.  The Judge did not think there was any prejudice from this and no miscarriage resulted.   The Judge said Ms P   did not ask who her accuser was prior to the hearing.  If she was concerned she could clearly have done so.

[22]     The first question seems to me, however, to be whether or not this document is an “information”.  That is whether it is a nullity.  If it is not an information then it could not be susceptible to the assistance of s 204.  The question is therefore what are the essential ingredients of an information?

[23]     Section 15 of the Summary Proceedings Act 1957 identifies the ingredients of an information.  It provides:

15       Information to be in prescribed form and upon oath

(1)       Every information to which this Part of this Act applies shall be form 1 in Schedule 2 to this Act, and shall be substantiated on oath before a [District Court Judge] or Justice or before a Registrar (not being a constable).

[(2)      Without  limiting  any  other  provision  of  this  Act  or  any  other enactment, no information shall be invalid by reason only that it does not contain the date of birth of the defendant or does not correctly describe the defendant's date of birth, and no amendment

shall be required to remedy that omission or error before the hearing of the information.]

[24]     Form 1, Schedule 2 provides:

Schedule 2 Form 1

Information  or  complaint  where  defendant  is  to  be  proceeded  against summarily

Section 15

I, [Full Name], of [Address, occupation], say on oath that (*I have just cause to suspect, and do suspect, that) (*within the previous (6) months, namely) on the day of 19       , at,           [Full Name], of [Address, occupation], *who was born on the day of 19       , [Here set out the substance of the offence or matter of complaint] (*being an  offence punishable summarily). [Here add  section and statute applicable.]

..........................

[Signature    of    Informant    or

Complainant]

Sworn before me at                 this          day of 19

..........................

District Court Judge, Justice of the Peace, [[Community Magistrate,]]  Registrar  (not being a constable).

Delete if inapplicable.

[25]     This illustrates that the essential information necessary for this document to be an information is present.  The information adequately identifies who is charged; by  her  name,  her  address,  and  the  fact  that  she  is  female.    While  it  may  not accurately identify her year of birth it does accurately identify the day and the month.  There can, therefore, be no doubt about the identity of the Margaret P   who is being charged with the crime.  I note s 15(2) ([23]) regarding the appellant’s date of birth.

[26]     The information summons Ms P   to appear at the Upper Hutt District Court on 8 May.  Ms P   is therefore properly informed where and when she must attend court.

[27]     A constable whose name is not known has said on oath on a date which is unknown (but must be before 8 May 2009 when Ms P   first appeared in Court) that Ms P   committed an offence against s 56(1) of the Transport Act 1962.  The information therefore identifies what crime the appellant has been charged with together with particular details.

[28]     The information has been sworn.  The information, on the face of it, says it has been sworn.  The informant has signed it and a Deputy Registrar has taken the oath.  What is missing is the name of the Constable who said he had just cause to suspect and the date and place of swearing.  But it is clear from the swearing of the information that a real person says he/she has cause to suspect.  I therefore reject the appellant’s claim that the information has not been sworn.

[29]     While I do not wish to undervalue these defects they do not go to the heart of the information and therefore do not, in my view, mean that the document is not an information and therefore a nullity.

[30]     Therefore having concluded that the document is indeed an information are the  defects  such  as  can  be  amended  by  s 204  without  a  miscarriage  of  justice occurring?  I am in no doubt they can.

[31]     Section 204 provides:

204      Proceedings not to be questioned for want of form

No information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any [District Court] or by any other Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.

[32]     The information is validly sworn, it alleges a crime against a real person who is identified.  It summons the person to appear in Court.  No objection was taken to this  information  until  months  after  the  appellant  first  appeared  in  Court.    She

appeared on a number of subsequent occasions without complaint and without asserting she was suffering a miscarriage of justice.  If a miscarriage of justice had occurred  then  it  could  be  expected  to  trigger  a  complaint  by  the  appellant immediately that somehow her rights or interests had been fundamentally affected by the defects of the information.

[33]     I am satisfied the Judge was correct when he concluded that this is exactly the kind of situation that s 204 is designed to “fix”.  No miscarriage of justice can be pointed to here.

[34]     For  the  reasons  given,  therefore,  the  appeal  against  conviction  will  be dismissed.  The appeal against sentence was not pursued and is dismissed.

[35]     The appellant’s disqualification will commence 24 hours after the release of this judgment.

Ronald Young J

Solicitors:

W  M Johnson, PO Box 962, Wellington 6140, email:  [email protected]
S Barr, Luke Cunningham & Clere, PO Box 10357, Wellington, email: [email protected]